Help Your Child Obtain His Immigrant Visa Even After Turning 21 Years Old (Aging Out)

In an earlier blogpost, we discussed the different ways the Child Status Protection Act (CSPA) could help a child who turned 21 prior to receiving their permanent residency.

Here, we will be discussing a specific case where CSPA allowed one of our clients to pursue an Immigrant Visa even after she turned 21. As we discussed previously, where a Lawful Permanent Resident parent files a petition for a child, CSPA will allow the time the visa petition was pending to be subtracted from the beneficiary’s biological age at the time of visa availability. Therefore, the applicant is not penalized for the time in which USCIS did not adjudicate the petition.

Eligibility Criteria

The Child must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.

The child must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.

The child must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-260, Application for Immigrant Visa and Alien Registration from the Department of State.

**The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later.

Under CSPA a child is determined to not have “aged out” if his age is determined to be under 21 years old when applying the following formula:

Age of Child at The Time an Immigrant Visa Number Become Available MINUS Time The I-130 Petition Was Pending EQUALS The Child’s Age for Immigration Benefits

An Example of CSPA

Our client, who we will call Sandy, has an approved I-130 petition filed by her legal permanent resident father on November 21, 2015 (Sandy’s priority date).

An Immigrant Visa became available for Sandy on October 1, 2016. This is the first day of the month the Department of State Visa bulletin indicates a visa number is available for her F2A preference category. The Visa Bulletin authorized numbers from all chargeability with a priority date earlier than November 22, 2015.

On October 1, 2016, Sandy was 21 years and 1 month. The original I-130 was received on November 21, 2015 and was approved on March 25, 2016.

Per the Child Status Protection Act, we can subtract the four months the I-130 was pending from her age. Consequently, Sandy was 20 years and 9 months at the time the Immigrant Visa became available and thus, she is protected under CSPA as long as she files for legal permanent residency within one year of the Immigrant Visa becoming available.

By taking advantage of CSPA, Sandy will avoid changing categories from an F2A (child) to an F2B (unmarried child over 21). This makes a significant difference because by changing categories to an F2B, Sandy would be forced to wait an additional six years for an Immigrant Visa to become available.

Like Sandy, many other children awaiting an Immigrant Visa can benefit from CSPA.

The National Visa Center does not automatically apply CSPA to your child’s case

It is important to invoke this benefit in a timely manner to avoid delays that can keep your child from benefiting.

If your child has a pending petition and he is close to aging out or has recently aged out, schedule a consultation with us. We can evaluate your child’s case. Call now (916) 613-3553.

The Ranchod Law Group is located in Sacramento and Santa Clara California, and provides immigration law services for residents and employers of San Francisco Bay Area communities. In addition, we provide immigration law representation for clients nationwide. Disclaimer: The testimonials, case results and/or endorsements do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.